Denver Sheriff’s Taser Use on the Mentally Ill

Law enforcement needs to treat all people within their care with fairness and reasonableness.  This includes people with disabilities.

Earlier this month, the Denver Post reported 1 Noelle Phillips, Denver Jail’s Taser Use At Odds With Federal Guidelines, Post Finds, Denver Post, http://www.denverpost.com/news/ci_26846770/denver-jails-taser-use-at-odds-federal-guidelines?source=rss allegations that the Denver Sheriff Department “often rely on their Tasers to inflict pain to force inmates, some of whom are mentally ill.” The newspaper’s findings include: “[d]eputies used their Tasers’ drive-stun mode, designed to inflict direct pain, in at least eight cases”; and  “[i]n at least six incidents, the inmate who was shocked had been experiencing a mental health episode.” 2 Id.

The Denver Post reviewed fourteen Taser cases so far this year by the Denver Sheriff Department.  In continuing coverage of the use of force by the Denver Sheriff, the Denver Post suggests, that if true, the allegations would violate federal Taser guidelines.

I am going to assert that if these allegations, if true, the conduct by the Denver Sheriff Department would violate federal law, the United States Constitution,  and international law.  At the very least these allegations, if true,  at least amount police abuse, and at most to torture.

Americans with Disabilities Act

The Americans with Disabilities Act (ADA) was passed with the intention of protecting vulnerable members of our society.  The law includes multiple parts, but the pertinent part here is Title II, which prohibits discrimination by public entities.3 The Americans with Disabilities Act,  Title II Public Services, 42 U.S.C. § 12131, et. seq. Title II of the ADA requires public services to make reasonable accommodations to known qualified individuals with disabilities. 4 Id.

The legislative history of the stated part of Congress’ reason for the law was to protect inmates at jails.5 United States v. Georgia, 546 U.S. 151, 161-62 (2006) (Stevens, J., concurring) (noting the legislative history and quoting from 2 House Committee on Education and Labor, Legislative History of Public Law 101-336. It notes “persons with hearing impairments” were arrested or held without reasonable accommodations being made to inform them of their rights or the charges.6 Id. The findings also include, persons with disabilities were “confined to the medical units where access to work, job training, recreation and rehabilitation programs is limited.”7 Id.

I have argued previously, and assert again here, law enforcement agencies have an affirmative duty to accommodate known qualified individuals with disabilities.8 Joe Thomas, Police Have Affirmative Duty to Accommodate Disabilities, Arizona Common Law, http://azcommonlaw.com/2014/03/police-affirmative-duty-accommodate-disabilities/; See also Joe Thomas, The Police’s Duty to Accommodate Under the Americans With Disabilities Act, Arizona Common Law, http://azcommonlaw.com/2014/02/police-duty-accommodate-americans-disabilities-act/. In my articles, I spoke about law enforcement investigations in the public.  Here, we are focusing on a more controlled environment of the Denver County Jail, specificially.  After inmates are booked into jail, law enforcement should have a good idea of who is a qualified individual with a disability that requires accommodations — it is much more difficult to know if a person is a qualified individual while on investigations.  In a place controlled and confined, such as a jail is, there is little excuse not to know which inmates have a qualifying mental illness.

Breaking federal guidelines is one thing, breaking federal law is another.  It is likely, the Denver Sheriff violated Title II of the ADA with their Taser practices.

Eighth Amendment to the United States Constitution

The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishments.9 U.S. Const. amend. VIII. To successfully make an Eighth Amendment claim and individual must prove officials applied force “maliciously and sadistically for the very purpose of causing harm,” or put it a diffferent way “a knowing willingness that [harm] occur.”10 Farmer v. Brennan, 511 U.S. 825, 835-36 (1994) (internal citation omitted).

Without going through the entire deliberate indifference test that the Eighth Amendment requires in jail/prison abuse situations,11See generally Farmer, 511 U.S. 825, see also Grieveson v. Anderson, 538 F.3d 763 (7th Cir. 2008); Gibson v. County of Washoe, 290 F.3d 1175 (9th Cir. 2002). because the facts of each particular case described by the Denver Post are publicly available, it is not known if the Denver Sheriff Department violated any inmates constitutional rights with the use of the Taser.

From the few details that are provided in the news report, it sounds likely that an Eighth Amendment violation could be found.

Conclusion

It is troubling there are allegations the Denver Sheriff is using a Taser as a method to inflict pain in unprovoked situations.  It is even more troubling there seems to be an emerging pattern by the Denver Sheriff Department, continuing to the “lengthy and tragic history” of discrimination against individuals with mental illness that can only be called “grotesque.”12 City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 461 (1985) (Marshall, J., concurring in part and dissenting in part).

References   [ + ]

1. Noelle Phillips, Denver Jail’s Taser Use At Odds With Federal Guidelines, Post Finds, Denver Post, http://www.denverpost.com/news/ci_26846770/denver-jails-taser-use-at-odds-federal-guidelines?source=rss
2.  Id.
3. The Americans with Disabilities Act,  Title II Public Services, 42 U.S.C. § 12131, et. seq.
4. Id.
5. United States v. Georgia, 546 U.S. 151, 161-62 (2006) (Stevens, J., concurring) (noting the legislative history and quoting from 2 House Committee on Education and Labor, Legislative History of Public Law 101-336.
6. Id.
7. Id.
8. Joe Thomas, Police Have Affirmative Duty to Accommodate Disabilities, Arizona Common Law, http://azcommonlaw.com/2014/03/police-affirmative-duty-accommodate-disabilities/; See also Joe Thomas, The Police’s Duty to Accommodate Under the Americans With Disabilities Act, Arizona Common Law, http://azcommonlaw.com/2014/02/police-duty-accommodate-americans-disabilities-act/.
9. U.S. Const. amend. VIII.
10. Farmer v. Brennan, 511 U.S. 825, 835-36 (1994) (internal citation omitted).
11. See generally Farmer, 511 U.S. 825, see also Grieveson v. Anderson, 538 F.3d 763 (7th Cir. 2008); Gibson v. County of Washoe, 290 F.3d 1175 (9th Cir. 2002).
12. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 461 (1985) (Marshall, J., concurring in part and dissenting in part).

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